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  1. When immigration judges get political, justice suffers. By Nolan Rappaport

    © Getty

    "Refugee Roulette"

    President Barack Obama’s immigration policies had the unintended consequence of encouraging illegal immigration. By focusing enforcement efforts primarily on aliens who had been convicted of serious crimes or who had been caught near the border after making an illegal entry, he created what I call a “home free magnet.”

    Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country unless they were convicted of a serious crime. This was a powerful incentive to do whatever was necessary to enter the United States.

    President Donald Trump destroyed this magnet with tough campaign rhetoric and his executive order, Enhancing Public Safety in the Interior of the United States, which greatly expanded enforcement priorities. No deportable alien is safe under Trump’s enforcement policies.

    But previous administrations have left Trump with another enforcement problem that he has not resolved yet.

    The immigration judges who decide whether an alien in removal proceedings will be deported have been selected by successive administrations with varying views on immigration enforcement, which has produced an immigration court of 350 judges who have conflicting views on how immigration law should be applied.
    According to a Reuters analysis of thousands of immigration court decisions, whether an alien in removal proceedings is allowed to remain or is deported depends largely on which immigration judge hears his case and where the hearing is held.


    Published originally on The Hill.

    About the author. Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.

  2. Supreme Ct. Justices' Questions Show Real Reason for Muslim Ban is Bigotry, not "Trumped-Up" Security Window Dressing. Roger Algase

    The conventional wisdom, based on numerous instant armchair analysis articles by mainly non-lawyer journalists appearing immediately after the April 25 Supreme Court oral argument in the Muslim Ban case Hawaii v. Trump (which the media misleadingly insist on calling a "travel ban" even though the nearly 200 million Muslims who are banned from entering the US under the president's latest version of his executive order are free to travel anywhere else in the world that they wish), is that the narrowly divided Supreme Court will uphold Trump's order and that the crucial "swing" Justice, Anthony Kennedy, will vote with the "conservative" (another euphemism - "radical right wing" might well be more accurate) majority on this issue.

    This would resolve the only real question in this case by holding that the alleged "national security" justification for the ban put forward by the Trump administration is genuine, and that it "Trumps" the Constitutional right to freedom of religion by Muslim US citizens who would be adversely affected by upholding the ban, as they unquestionably would be - a point which did not appear to come out at the oral argument to any great extent.

    But when one recalls that during Trump's campaign there was talk, not only of banning the world's entire Muslim population from the US, but of conducting surveillance of Muslim Americans and even interning them, in an ominous throwback to what happened to Japanese-Americans during WW2 (shamefully, with the Supreme Court's approval), it becomes clear what could be at stake for the 3 million US citizens who happen to belong to the Muslim faith if the latest version of Trump's ban order is finally upheld.

    However, no matter how much the ban's supporters on and off the Court may wish to to hand the president a victory on one of his "signature" campaign issue, it became obvious during the oral argument that the "national security" reason that has been put forth for the ban is nothing but "Trumped-up " window dressing for the anti-Muslim bigotry that underlies the ban.

    The main task for the Solicitor General, Noah Francisco, was to persuade the Court to disregard Trump's numerous statements and actions, both as a candidate and after taking office as president, making clear beyond any possible doubt that the real reason for barring 200 million Muslims from entering the US on the basis of their nationality alone, and without any evidence of individual wrongdoing, was hatred of of Muslims and their religion, or what the 4th Circuit politely but accurately called "animus" on Trump's part.

    However, two hypothetical questions, one by Justice Kennedy and the other by Justice Kagan, showed the essential hollowness (and lack of required good faith - see Kleindienst v. Mandel, 1972) in the government's claim that Trump's Islamophobic statements as a "private citizen" should be ignored (without mentioning Trump's retweeting a British anti-Muslim hate video and appointing openly Muslim-hating top advisers such as Michael Flynn and Steve Bannon as president, to mention only a few similar actions).

    Justice Kennedy's hypothetical question was the following, as reported by George Mason University Law Professor Ilya Somin in his incisive article about the oral argument (not only the best I have read, but in my opinion, the only good one that I have seen previously):

    "Suppose you have a local mayor and, as a candidate, he makes vituperative hate - hateful statements, he's elected, and on day two, he takes acts that are consistent with those hateful statements. That's - whatever he said in the campaign is irrelevant?"

    And, as also reported by Professor Somin, Justice Kagan asked whether:

    "...a president gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred"

    could legitimately produce a national security rationale for a travel ban against Israel without violating the Constitution.

    In answer to Justice Kennedy's question, Francisco's claim that Trump's statements about Muslims do not indicate the true purpose of the ban were unconvincing, to say the least, especially in view of Trump's claim, as president, not as a candidate, that his initial draconian version of the travel ban, which his administration later withdrew to comply with lower court orders, should never have been "watered down."

    (In this area, as in so many others, Trump has shown himself to be far from an easy client for any lawyer to represent!)

    And in answer to Justice Kagan's question, Francisco had no choice by to concede that a hypothetical entry ban against citizens of Israel would be unconstitutional, even if based on purported agency recommendations, such as those which Trump allegedly received from his officials (who, of course, would have been promptly fired for being "disloyal" if they had refused to support the ban).

    We can be sure that Justice Kagan will not forget her above question when she votes on which way to decide in this case. Anyone who supports freedom and equality of all religions in America and who does not favor using our immigration laws as an instrument of hatred and prejudice based on race or religion, as was the case for so much of America's immigration history and which Trump is now trying to do with his Muslim Ban, can only hope that Justice Kennedy will remember his hypothetical question too when the Court makes its decision.

    There is more at stake in this case than simply how many immigrants from predominantly Muslim counties will be allowed to enter Donald Trump's America with legal visas in the next few years. The larger issue is whether claimed unlimited presidential power over immigration will be allowed to "Trump" the United States Constitution.

    If the Supreme Court puts unlimited presidential power in any area of government ahead of the Constitutional guarantees of religious freedom and equal protection of the law to everyone, regardless of race, religion or ancestry, not only non-white immigrants will be the ones to suffer. The American people will also lose their freedom, and the basic values of justice and equality on which this nation was founded could well disappear.

    Roger Algase
    Attorney at Law

    Updated 04-26-2018 at 08:19 PM by ImmigrationLawBlogs

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